Texas Court Considers Charging Prosecutor for Hiding Brady Evidence

Professor Ben Gershman blogs on the Huffington Post.   We are re-posting his piece on the unusual Texas inquiry into Prosecutor Ken Anderson’s handling of evidence while prosecuting Michael Morton:

“Don’t cry for former Texas prosecutor, now judge Ken Anderson, who faced a court of inquiry last week into whether he deliberately hid evidence that sent an innocent man to prison for 25 years for murder. As the prosecutor in the 1987 trial of Michael Morton, Anderson testified that “the system screwed up” and that he did nothing wrong. He appeared more anguished over protecting his own image and “what me and my family have been through for 18 months of false accusations” than the terrible reality that he abused his power as a prosecutor to destroy the life of an innocent man.

Arrogant, defiant, and dishonest, Anderson’s alleged misconduct in Morton’s trial, and his present attempt to justify his deceit of court, jury, and defense counsel, typifies the worst in prosecutors. Below are some of the highpoints in this unusual state judicial proceeding, presided over by Judge Louis Sturns, that may result in a criminal prosecution against Anderson for contempt of court and tampering with evidence.

Michael Morton was accused of murdering his wife Christine by bludgeoning her to death in their Williamson County home in 1986 before going to work. The killing attracted considerable attention – “It was a big deal” according to former prosecutor Kimberly Gardner who worked under Anderson. The evidence of Morton’s guilt was circumstantial and not very strong. Anderson’s theory was that Morton killed his wife because she wouldn’t have sex with him, and the medical examiner provided an opinion that pinpointed with questionable accuracy the time of death as occurring before Morton left for work. However, there was considerable evidence that strongly supported the defense theory that a stranger entered the home and killed Christine after Michael left. Almost all of this exculpatory evidence was contained in notes, reports, and transcripts gathered by the lead investigator Sgt. Don Wood of the Williamson County Sheriff’s Office.

The information collected by Wood, which he shared with Anderson, included the following: reports from neighbors seeing a man in a green van behind the Morton home around the time of Christine’s murder; the transcript of an interview by Sgt. Wood of Rita Kirkpatrick, Morton’s mother-in-law, stating that her three-year-old grandson Eric told her he saw a “a monster” – not his father – beat his mother to death; evidence that Christine’s purse was stolen and her credit card and checkbook fraudulently used several days later; unidentified fingerprints in the Morton home; and an unidentified footprint in the backyard. Armed with this powerful evidence – which they knew nothing about — it is difficult to believe that Morton’s defense lawyers would not have been able to provide the jury with substantial reasonable doubt of Morton’s guilt. But the jury never heard this evidence because Anderson hid it from Morton’s lawyers and from the trial judge who had ordered Anderson to disclose it.

Among the most egregious actions of Anderson was his decision not to call Sgt. Wood as a witness for the prosecution. As noted, Wood was the chief investigating officer and would have given the jury the background of the case, and all of the evidence he accumulated, including the evidence that was inconsistent with Morton’s guilt. But as Anderson well knew, under the rules of trial procedure, calling Wood would have required Wood to divulge all of his case notes, reports, and the transcript of the child’s statement describing the killer as a “monster.” So, according to the testimony last week of former prosecutor Doug Arnold, Anderson said he wasn’t calling Wood because that way “the other side can’t have access to those reports.”

Equally egregious was Anderson’s response to the 1987 order by the trial judge William Lott, since deceased, to disclose all of the evidence the police had collected. Anderson turned over a slender envelope containing only Morton’s statements to the police; he did not disclose the mountain of evidence collected by Wood that would have strongly supported Morton’s claim of innocence. It is this alleged violation by Anderson of the trial court’s disclosure order that is one of the central issues in the court of inquiry, and if Judge Sturns determines that Anderson violated the order, then Anderson will face criminal charges for contempt.

Anderson’s perverse trial strategy was either to conceal the transcript of the child’s statements to his grandmother, or to obscure the child’s description of the killer, which Anderson knew would likely have doomed his prosecution. According to the testimony last week of former prosecutor Gardner, Anderson acknowledged that “The kid thinks a monster killed his mother,” and that his father was not present when his mother was killed, as well as describing other details that corresponded to the evidence at the crime scene, including a blue suitcase that the killer placed atop his mother’s body. Anderson stated that if the child’s story ever gets exposed, Anderson would claim that what the child really saw was his father dressed in a scuba diving suit as a disguise and that’s why there was no blood on his clothing.

Gardner recalled that Anderson’s concoction of a story of “this guy killing his wife in front of his 3-year old son in a skin diving suit was pretty strange.” But why didn’t Anderson disclose this information to the defense? Because, as Anderson testified, “He was a traumatized three-year-old child. You can’t attach any significance to anything he said.” In other words, according to Anderson’s view of acceptable prosecutorial practice, if a prosecutor learns that evidence exists that contradicts the prosecution’s theory of guilt, that evidence, by definition, is mistaken, erroneous, or false. With such a mindset, tantamount to the fox guarding the henhouse, a prosecutor can always bury troublesome facts.

Interestingly, Anderson in his pre-hearing deposition, repeatedly professed to not having any memory of the factual details of the Morton case, including the child’s statement, or Anderson’s bizarre scuba diving story to explain it. But Anderson’s failure of memory of critical facts in the Morton case appears to be disingenuous, especially given the many references in his book Crime in Texas, about which he was questioned, in which he recounts how as a prosecutor he had to master hundreds of details in cases, especially high-profile cases like Morton’s.

Judge Sturns reserved his decision until the attorneys file additional papers. His decision will likely be made sometime in the next several months. Meanwhile, Michael Morton can enjoy his freedom, which Anderson’s misconduct denied him. Morton asked Judge Sturns to “be gentle with Ken Anderson,” a kindness that, as the hearing demonstrated, Anderson hardly deserves.”

For more information about Michael Morton’s exoneration, go to www.innocenceproject.org/Content/Michael_Morton.php